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2010-UP-281 - State v. Moore

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

The State, Respondent,

v.

Jane Dorothy Moore, Appellant.


Appeal From Georgetown County
 Steven H. John, Circuit Court Judge


Unpublished Opinion No. 2010-UP-281
Submitted May 3, 2010 – Filed May 20, 2010   


AFFIRMED


Appellate Defender M. Celia Robinson, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, and Senior Assistant Attorney General Norman Mark Rapoport, all of Columbia; and Solicitor John Gregory Hembree, of Conway, for Respondent.

PER CURIAM:  Jane Dorothy Moore was tried by a jury for failure to stop for a blue light.  At trial, Moore maintained a woman in the car with Moore was driving.  Moore was convicted and sentenced to ninety days' imprisonment.  Moore argues the trial court erred in (1) precluding her from presenting the results of an experiment she personally conducted outside of court to determine travel times along the route where she was arrested; (2) preventing her from questioning the arresting officer regarding timed entries on his Computer Aided Dispatch (CAD) incident detail report; (3) refusing to require the State to produce and disclose a booking photo of her; and (4) refusing to require the State to provide her with the criminal record of the other woman in the car.  We affirm[1] pursuant to Rule 220(b)(1), SCACR, and the following authorities:

1. As to whether the trial court erred in precluding Moore from presenting the results of a self-conducted out-of-court experiment: State v. Frazier, 357 S.C. 161, 166, 592 S.E.2d 621, 623 (2004) (stating in order for an out-of-court experiment to be admissible, the experiment must be "made under conditions and circumstances similar to those prevailing at the time of the [incident]"); Weaks v. S.C. State Hwy. Dep't, 250 S.C. 535, 542, 159 S.E.2d 234, 237 (1968) ("It is not required that the conditions be identical with those existing at the time of the controversy; it is sufficient if there is a substantial similarity."); Gasque v. Heublein, Inc., 281 S.C. 278, 286-87, 315 S.E.2d 556, 561 (Ct. App. 1984) (noting the question of similarity of circumstances lies within the sound discretion of the trial court). 

2.  As to whether the trial court erred in preventing Moore from questioning the State's witness about a CAD incident detail report: State v. Dunbar, 356 S.C. 138, 142, 587 S.E.2d 691, 693-94 (2003) ("In order for an issue to be preserved for appellate review, it must have been raised to and ruled upon by the trial judge.  Issues not raised and ruled upon in the trial court will not be considered on appeal.").  

3.  As to whether the trial court erred in refusing to require the State to produce a booking photo of the other woman riding in Moore's vehicle: Dunbar, 356 S.C. at 142, 587 S.E.2d at 693-94 ("In order for an issue to be preserved for appellate review, it must have been raised to and ruled upon by the trial judge.  Issues not raised and ruled upon in the trial court will not be considered on appeal.").  

4.  As to whether the trial court erred in refusing to require the State to provide Moore with the criminal record of the other woman in the car:  Holmes v. South Carolina, 547 U.S. 319, 327 (2006) (recognizing the "widely accepted" rules permitting a defendant to introduce evidence of third-party guilt when the evidence is inconsistent with and raises a reasonable doubt of defendant's own guilt, but excluding such evidence when it is speculative or remote);  State v. Cope, 385 S.C. 274, 293, 684 S.E.2d 177, 187 (Ct. App. 2009) ("Evidence of third-party guilt may include: (1) facts that are inconsistent with the defendant's guilt; and (2) evidence raising a reasonable inference as to the accused's innocence."). 

AFFIRMED.

KONDUROS, GEATHERS, and LOCKEMY, JJ., concur.


[1] We decide this case without oral argument pursuant to Rule 215, SCACR.